Civil Suit No. 18 of 2012 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.462 of 2016 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment and decree dated 30.07.2016 & 12.08.2016 respectively passed by the learned Additional District Judge, Rayagada in R.F.A. No.14 of 2015, confirming the judgment and decree dated 22.09.2015 & 05.10.2015 respectively passed by the learned Senior Civil Judge, Rayagada in Civil Suit No.18 of 2012. ---- Manorama Dangua …. Appellant Bhagyalata Dalai …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant- M/s. Gopinath Padhi K.C. Rajguru Mohapatra Advocates For Respondents - -------
Legal Reasoning
CORAM: MR. JUSTICE D.DASH Date of Hearing :04.03.2024 :: Date of Judgment: 11.03.2024 D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the R.S.A. No.462 of 2016 Page 1 of 8 {{ 2 }} judgment and decree dated 30.07.2016 & 12.08.2016 respectively passed by the learned Additional District Judge, Rayagada in R.F.A. No.14 of 2015. The Appellant as the Plaintiff had filed the suit (Civil Suit No.18 of 2012) for declaration of her right, title, interest and possession over the suit land described in schedule of the plaint, recovery of possession and permanent injunction in the Court of learned Senior Civil Judge, Rayagada. The suit having been dismissed, the Appellant as the unsuccessful Plaintiff had carried the Appeal under section 96 of the Code, which had also been dismissed. Hence the present Second Appeal is at the instance of the Plaintiff, who has been non-suited by the Trial Court as well as the First Appellate Court. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit. 3. The Plaintiff’s case is that she has purchased the land in question from one Jagdish Chandra Panda by registered sale deed in the year 2002. Said Jagdish Chandra Panda had purchased the land from one Smt. N. Sarada Devi by registered sale deed of the year 1995. R.S.A. No.462 of 2016 Page 2 of 8 {{ 3 }} The Record of Right of the said land stands in the name of N.Sarada Devi, who had purchased it from the original khatadar under registered sale deed No.198 of 1989. It is stated that in between the suit land and the purchased land of the Defendant, the land of one K. Satyabati situates. The Defendant while constructing her house over the purchased land had encroached upon the land of one Imam Saheb on the East. A piece of land has also been purchased from that Imam Saheb in the name of her sons, namely, Ratan Dalai and Jiten Dalai. In the mutation case applied by Imam Saheb, the length however was wrongly indicated as 195 feet instead of 124 feet as per the Amin report and on that basis, the RoR is said to have been wrongly prepared in his name. It is stated that in fact Imam Saheb had purchased a piece of land measuring 30 feet x 124 feet. Plaintiff states that the Defendant helped her in purchasing the suit land and she stood as a witness in the deed. Since lay out plot number has been mentioned in the sale deed, the Defendant taking advantage of the same had encroached upon the land of K. Satyabati and that of the land of the Plaintiff and constructed a room of the size of 10 x 10 feet on the North. The Plaintiff states that taking advantage of the recording of the land in Record of Right in the name of said Imam Saheb, the Defendant created a document in the year 2008 in favour of her husband in respect of Khata No.50/2074 and plot no.145/255/2238, R.S.A. No.462 of 2016 Page 3 of 8 {{ 4 }} lay out sub plot no.122 for an area of 15 feet x 124 feet with wrong boundaries. The document is said to be a void one. The Defendant is said to have purchased sites under two documents from East to West measuring 60 feet and from North to South measuring 124 feet and beyond that area she has no other land. If there is a land of Seikh Imam Saheb at all, it may be on the South of the land of the Defendant but there is a municipal lane on the South of the land of the Defendant as also there is a municipal lane on the South. The land of the Defendant starts from one Panigrahi’s land from East in the lay out plot no.123 and beyond 60 feet, the Defendant has no land. 4. The Defendant while traversing the plaint averments stated that she is no way concerned with the land of the Plaintiff. It is stated that she and her family members have purchased an area of 75 feet from East to West and 124 feet from South to North in three phases under Sale Deed Nos. 1306 of 1995, 292 of 2005 and 1999 of 2008 starting from lay out plot no.123 (part) to 121. She has put up the construction of the house as per the approved plan. There is structure over the whole area and she is in possession of the said land. It is stated that the land of K. Satyabati and the Plaintiff are south facing but the land of the Defendant is North facing being intervened by the ring road of 60 feet width. There is no mention of lay out plot number in the sale R.S.A. No.462 of 2016 Page 4 of 8 {{ 5 }} deeds of the Plaintiff and that of K. Satyabati. Besides, the size and boundaries of the suit land and the land of K. Satyabati do not tally as per the plan. So it is said that the lands of the Plaintiff and K. Satyabati are not situated on the same row. 5. On the above rival pleadings, the Trial Court has framed as many as four issues. Sitting over to decide the crucial issue, i.e. issue no.3 as regards the right, title, interest of the Plaintiff over the suit land, upon examination of the evidence both oral and documentary and their evaluation the trial court found the case of the Plaintiff to be doubtful. Next, it has been said that the land of the Defendnat is not situated adjacent to the land of the Plaintiff and there has been no encroachment by the Defendant. It has been held that the evidence on record do not go to establish the existence of the suit land and, therefore, the Plaintiff is not entitled to the reliefs claimed. The First Appellate Court being moved by the unsuccessful Plaintiff on re-appreciation of evidence independently at its level has refused to set aside the findings arrived at by the Trial Court. It has been specifically held that there is no proof that both the lands of the Plaintiff and the land of the Defendant are existing on the same row and the lands are not situated adjacent to each other for which the question of encroachment as alleged by the Plaintiff is not made out. R.S.A. No.462 of 2016 Page 5 of 8 {{ 6 }} 6. Heard Mr. Gopinath Padhi, learned Counsel for the Appellant in the matter of admission of this Appeal at length. He submitted that the finding of the Trial Court as well as the First Appellate Court on Issue No.3 is not justified and correct and even though the Plaintiff has proved her case by leading oral and documentary evidence in establishing her right, title, interest and possession over the suit schedule land, the Trial Court as well as the First Appellate Court have gone completely wrong in deciding the said issue against the Plaintiff. It is stated that the said decision is the outcome of perverse appreciation of evidence. He, therefore, urged for admission of this Appeal to answer the above as the substantial questions of law. 7. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. 8. The Plaintiff having purchased the land from Jagadish Chandra Panda in the year 2002 has not proved the original sale deed and has remained satisfied in admitting the certified copy of the said sale deed in evidence when it is her positive evidence that she has the original sale deed in her custody. Therefore, the very case of the Plaintiff at the beginning gets the jolt. The Defendant’s case is that she and her family members had purchased an area of 75 feet from East to West and 124 feet from North to South in three phases under three R.S.A. No.462 of 2016 Page 6 of 8 {{ 7 }} Sale Deeds one in the year 1995, the next is in the year 2005 and the last one is in the year 2008. This starts from lay out plot no.123 (part) to 121. She states to have constructed her house as per the approved plan. The structure over the whole area being made she is in possession. The land of K. Satyabati and the Plaintiff are South facing whereas the land of the Defendants faces to the North being intervened by a ring road of 60 feet. This is all the case of the Plaintiff and it is said that there is no mention of lay out plot number in the sale deed of the Plaintiff and that of K. Satyabati. When the Plaintiff has made a prayer to declare the registered sale deed no.1999 of 2008 as null and void, if has been rightly said by the Courts below that the same is not permissible to be made as against the husband of the Defendant whose right thereby would be affected when he is not arraigned as a party to the suit. The two sons of Defendant having purchased the land from Imam Saheb, the First Appellate Court is right in saying that the question of encroachment as held by the Plaintiff does not arise. By giving cogent reasons after having strenuously scrutinized the evidence, the Courts are found to have rightly held that the Plaintiff has not come to the Court in clean hands. This Court finds itself in full agreement with the view taken by the Trial Court as well as the First Appellate Court that the R.S.A. No.462 of 2016 Page 7 of 8 {{ 8 }} Plaintiff has failed to prove her case by leading clear, cogent and acceptable evidence so as to be entitled to the decree as prayed for. 9. In the wake of aforesaid, this Court is not in a position to accept the submission of the learned Counsel for the Appellant that the Appeal merits admission to answer the substantial question of law as pointed out. 10.
Decision
In the result the Appeal stands dismissed. No order as to cost. (D. Dash), Judge. Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 19-Mar-2024 11:26:38 R.S.A. No.462 of 2016 Page 8 of 8